United States v. Stewart , 62 M.J. 291 ( 2006 )

UNITED STATES, Appellee
v.
Michael D. STEWART, Airman First Class
U.S. Air Force, Appellant
No. 05-0381
Crim. App. No. 35188
United States Court of Appeals for the Armed Forces
Argued October 19, 2005
Decided January 24, 2006
BAKER, J., delivered the opinion of the Court, in which GIERKE, C.J.,
and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Kimberly A. Quedensley (argued);
Lieutenant Colonel Mark R. Strickland (on brief); Colonel Carlos
L. McDade, Major Sandra K. Whittington, and Major James M.
Winner.
For Appellee: Major Amy E. Hutchens (argued); Lieutenant
Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer
(on brief).
Military Judge: Jack L. Anderson
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Stewart, No. 05-0381/AF
Judge BAKER delivered the opinion of the Court.
While stationed at Edwards Air Force Base, Appellant, an
airman, unlawfully entered the room of a fellow servicemember.
He indecently assaulted her while she lay unconscious and
videotaped her unclothed body. After a contested general court-
martial before members, Appellant was convicted of one
specification of unlawful entry, one specification of indecent
assault, and one specification of committing an indecent act, in
violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934 (2000).
On October 13, 2001, Appellant’s sentence was adjudged by
the members. He was sentenced to “[r]eduction to the grade of
Airman Basic (E-1), 15 months confinement and forfeiture of all
pay and allowances.” A punitive discharge was not adjudged.
The convening authority approved the sentence, including total
forfeitures, on March 17, 2002. Upon his release from
confinement, Appellant returned to active duty where, as
explained below, he was subject to continued forfeitures until
December 31, 2002. Appellant was discharged from active duty
upon reaching his End of Active Service (EAS).
We granted review of the following issue upon Appellant’s
petition:
WHETHER FORFEITURES WERE IMPROPERLY IMPOSED ON THE APPELLANT’S
PAY AND ALLOWANCES AFTER HE WAS RELEASED FROM CONFINEMENT AND
RETURNED TO ACTIVE STATUS ON 14 APRIL 2002.
BACKGROUND
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Appellant began his fifteen-month term of confinement on
October 13, 2001. Forfeiture of all pay and allowances went
into effect on October 27, 2001. Appellant received 184 days of
pretrial confinement credit. He was released and returned to
active duty on April 14, 2002.
Following his return to duty, the Defense Finance and
Accounting Service (DFAS) continued to impose total forfeitures
until August 31, 2002. DFAS subsequently determined that
Appellant should only have been subject to two-thirds
forfeitures after his release from confinement. Therefore, DFAS
credited Appellant with one-third the amount of the total
forfeitures taken from May 1, 2002, through August 31, 2002.
DFAS continued to impose forfeitures of two-thirds of
Appellant’s pay until January 2003. On January 13, 2003, the
convening authority issued General Court-Martial No. 2 and
remitted the uncollected portion of the sentence to forfeitures.
Appellant argues he should not have been subject to either
total or partial forfeitures after his release from confinement.
He contends that because the members did not specify imposition
of partial forfeitures as an additional punishment following
total forfeitures, his sentence to forfeiture of all pay and
allowances was intended to run only through his period of
confinement. Further, Appellant claims, DFAS’ continued
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imposition of forfeitures subjected him to a sentence more
severe than that adjudged by the members.
The Government, by contrast, argues that forfeiture of all
pay and allowances transforms automatically into partial
forfeitures upon a servicemember’s release from confinement and
return to active duty, unless the members otherwise delimit the
imposition of such forfeitures. Such partial forfeitures, the
Government contends, run until the servicemember’s EAS date, or
until such time as the convening authority approves, or the
members expressly provide. Where a punitive discharge is
adjudged and approved, the servicemember is discharged upon
release from confinement and the concern addressed by Appellant
does not arise.
The parties’ arguments and the facts of this case raise a
threshold question: what effect should be given to a sentence
to forfeiture of all pay and allowances where no time limit is
specified and the subject returns to a duty status post-
confinement?
DISCUSSION
Rule for Courts-Martial (R.C.M.) 1003(b)(2) provides:
Forfeiture of pay and allowances. Unless a total
forfeiture is adjudged, a sentence to forfeiture shall
state the exact amount in whole dollars to be forfeited
each month and the number of months the forfeitures will
last.
The discussion to R.C.M. 1107(d)(2) states:
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When an accused is not serving confinement, the accused
should not be deprived of more than two-thirds pay for any
month as a result of one or more sentences by court-martial
and other stoppages or involuntary deductions, unless
requested by the accused.
Based on the non-binding discussion to R.C.M. 1107(d)(2),
this Court held in United States v. Warner, 25 M.J. 64 (C.M.A.
1987), that a servicemember released from confinement and still
in a duty status may not be deprived of more than two-thirds of
his or her pay. See also United States v. Lonnette, 62 M.J. __
(C.A.A.F. 2006) If a portion of a sentence “provides for”
continued forfeiture of all pay and allowances after a
servicemember is released from confinement but before execution
of the discharge, that portion of the sentence should be amended
to provide for forfeiture of two-thirds pay until the discharge
is executed. Warner, 25 M.J. at 67.
As the Warner Court recognized, underlying the discussion
to R.C.M. 1107(d)(2) is a policy concern that an accused should
not be deprived of all means of supporting himself or his family
while on active duty. Warner, 25 M.J. at 66. As a result, just
as Warner could not have been subject to more than two-thirds
forfeitures once he was released from confinement and returned
to a duty status, Appellant could not be subject to more than
two-thirds forfeiture following his return to duty status.
Moreover, in light of R.C.M. 1003(b)(2), the discussion to
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United States v. Stewart, No. 05-0381/AF
R.C.M. 1107(d)(2), and Warner, this was the law at the time of
Appellant’s court-martial.
However, Appellant’s case presents a more fundamental
question: Did the members, in fact, adjudge a sentence that
would have subjected Appellant to forfeiture following his
release from confinement when they sentenced Appellant to
“forfeiture of all pay and allowances?”
On the one hand, this sentence could be read to reflect the
members’ intent to sentence Appellant to continuous forfeitures
so long as he was in the armed forces. The plain language of
the adjudged sentence states forfeiture of all pay and
allowances without limitation. Thus, the members’ intent is
plain -– total forfeitures hereinafter, subject of course, to
the operation of applicable law and regulation. This is the
Government’s view.
On the other hand, in light of R.C.M. 1003(b)(2), the
discussion to R.C.M. 1107(d)(2), and Warner, this sentence could
be read to reflect the members’ intent to sentence Appellant to
forfeiture of all pay and allowances during that period in which
he was in confinement. Otherwise, the members, knowing that
they had not punitively discharged Appellant, would have been
obliged by law to specify the amount and duration of any partial
forfeiture following his release from confinement. R.C.M.
1003(b)(2).
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As the Government itself concedes, we cannot be sure what
the members intended. As the Government stated at oral
argument, the members “at the very least intended for total
forfeitures, either collected at the full total amount or at the
reduced two-thirds administrative amount, to run for at least
fifteen months.”
Certainly, it is settled law that an accused cannot be
subjected to a sentence greater than that adjudged by the
members. Waller v. Swift, 30 M.J. 139, 143 (C.M.A. 1990).
Moreover, where a sentence is ambiguous or uncertain, as a
matter of fundamental fairness an accused cannot be subject to a
sentence greater than that which is clearly indicated.
The principle that an accused should not be subjected to an
ambiguous, uncertain sentence is grounded in longstanding United
States jurisprudence. “Sentences in criminal cases should
reveal with fair certainty the intent of the court and exclude
any serious misapprehensions by those who must execute them.”
United States v. Daugherty, 269 U.S. 360, 363 (1926). A
sentence that is so ambiguous that a reasonable person cannot
determine what the sentence is may be found illegal. United
States v. Earley, 816 F.2d 1428, 1430 (10th Cir. 1987).
However, not all ambiguous sentences are illegal. Id. at 1431.
A sentence need not be so clear as to eliminate every doubt, but
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sentences should be clear enough to allow an accused to
ascertain the intent of the court or of the members. See id.In this case, we cannot determine with fair certainty the
duration of the total forfeitures that the members intended to
impose upon Appellant, or whether the members intended to impose
partial forfeitures following confinement, and if so, for what
period of time and in what amount. The plain language of the
sentence as approved by the convening authority provides little
insight. Appellant’s sentence simply reads: “Reduction to the
grade of Airman Basic (E-1), 15 months confinement and
forfeiture of all pay and allowances.” Thus, we shall affirm
only so much of Appellant’s sentence to forfeiture as we can
determine with fair certainty the members intended to adjudge.
R.C.M. 1003(b)(2) provides that “[u]nless a total
forfeiture is adjudged, a sentence to forfeiture shall state the
exact amount in whole dollars to be forfeited each month and the
number of months the forfeitures will last.” This was not done
in Appellant’s case. While Appellant’s sentence need not have
been so clear as to dispel every doubt, it should have contained
enough information to place him on notice that he would be
subjected to partial forfeitures following his release from
confinement. His sentence should additionally have provided
some indication of how long the partial forfeitures would remain
in effect. Because Appellant’s sentence did not expressly
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provide for partial forfeitures, we shall affirm only those
forfeitures coterminous with the time Appellant spent in
confinement.
In addition to conforming with the text of R.C.M.
1003(b)(2), such a result is consistent with the legal policy
that informs the discussion to R.C.M. 1107(d)(2). Where the
sentencing authority intends to deprive an accused in a duty
status to partial forfeitures it should state so with clarity,
so as to avoid any ambiguity or mistake in intent. Partial
forfeitures are a form of pecuniary punishment that have an
impact on convicted servicemembers as well as their families.
Ambiguous or uncertain sentences to forfeiture are detrimental
because they leave military families unsure of how long wages
will be forfeited, and less able to engage in financial planning
for the future. We hold that where a sentence to forfeiture of
all pay and allowances is adjudged, such sentence shall run
until such time as the servicemember is discharged or returns to
a duty status, whichever comes first, unless the sentencing
authority expressly provides for partial forfeitures post-
confinement. The sentencing authority shall specify the
duration and the amount of such partial forfeitures, subject to
R.C.M. 1103(b)(2), the discussion accompanying R.C.M.
1107(d)(2), and Warner.
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DECISION
For the reasons discussed above, we affirm the decision of
the Air Force Court of Criminal Appeals as to the findings. We
affirm only so much of Appellant’s sentence as provides for
reduction to the grade of Airman Basic (E-1), fifteen months of
confinement, and forfeiture of all pay and allowances for the
length of time Appellant spent in confinement.
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